§ 4408. Regulations of railroad companies. It is too well settled to require citation of authorities that railroad companies, at least for nearly all purposes, may be treated as a separate class, so far as governmental regulation is concerned, without violating the provision of the Federal Constitution as to equal protection of the laws or provisions in state constitutions as to special laws, special privileges, etc. The basis of this classification, in most cases, is the peculiarly hazardous nature of the business of operating railroads. For instance, regulations have been upheld denying railroad companies the benefit of the fellow-servant rule or abolishing the defenses of contributory negligence and assumed risk; without extending the added liability to other corporations; requiring them, under certain circumstances, to pay attorney's fees; making them liable for double or increased damages under certain circumstances,

R. Co. v. Jackson Vinegar Co., 226 U.
S. 217, 57 L. Ed. 193; Kansas City
Southern R. Co. v. Anderson, 233 U. S.
325, 58 L. Ed. 983.

7 Chicago, T. H. & S. E. R. Co. v. Anderson, 242 U. S. 283, 61 L. Ed. 302, aff'g 182 Ind. 140, Ann. Cas. 1917 A 182, 105 N. E. 49; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. Ed. 585; Missouri Pac. R. Co. v. Mackey, 127 U. S. 205, 32 L. Ed. 107; Gunn v. Minneapolis, St. P. & S. S. M. R. Co., 34 N. D. 418, 158 N. W. 1004.

"That legislation imposing upon railway companies special restrictions, obligations, and liabilities not generally applicable to other persons or corporations, is not a denial of the equal protection of the laws, has been so often decided as to be no longer a debatable question." McGuire V. Chicago, B. & Q. R. Co., 131 Iowa 340, 33 L. R. A. (N. S.) 706, 108 N. W. 902.

"This classification is based, not on the difference in employers, but upon a difference in the nature of the employment." Pittsburgh, C., C. & St. L. Ry. Co. v. Lightheiser, 168 Ind. 438, 464, 78 N. E. 1033.

8 Among the multitude of cases so

holding, see Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 56 L. Ed. 875; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912 A 463; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348, 44 L. Ed. 192; Missouri Pac. R. Co. v. Mackey, 127 U. S. 205, 32 L. Ed. 107; Pittsburgh, C., C. & St. L. R. Co. v. Montgomery, 152 Ind. 1, 69 L. R. A. 875, 71 Am. St. Rep. 301, 49 N. E. 582.

9 Kansas City Southern R. Co. v. Anderson, 233 U. S. 325, 58 L. Ed. 983, aff 'g 104 Ark. 500, 149 S. W. 58; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. Ed. 909; Cleveland, C., C. & St. L. R. Co. v. Hamilton, 200 Ill. 633, 66 N. E. 389; State v. Texas & P. R. Co., 106 Tex. 18, 154 S. W. 1159.

But it has been held that a statute imposing liability for attorney's fees in favor of a person successfully suing a railroad company for services or for damages denies railroad companies the equal protection of the laws. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. Ed. 666, which, however, is in effect overruled by Kansas City Southern R. Co. v. Anderson, 233 U. S. 325, 58 L. Ed. 983.

including failure to pay just claims; 10 making them liable, without regard to negligence, for fires set by their engines; 11 fixing time of payment of wages 12 and requiring them to pay without discount to a discharged employee wages earned at the time of discharge.13 So statutes requiring railroad companies to cut down and destroy noxious weeds on lands occupied by them do not violate the equal protection clause of the Federal Constitution.14

On the other hand, there are some isolated cases holding particular regulations of railroad companies, such for instance as those relating to payment of wages or liability for attorney's fees, to violate the equal protection of the law clause; and it seems that while railroad companies may be placed in a class by themselves for some legislative purposes, such as those which relate to duties peculiar to them as carriers or relating to dangers peculiar to their operation, yet there must be a valid basis for the classification in every case and it must not be merely arbitrary, 15 although the courts, especially the Supreme Court of the United States, have almost invariably upheld

10 Kansas City Southern R. Co. v. Anderson, 233 U. S. 325, 58 L. Ed. 983, aff'g 104 Ark. 500, 149 S. W. 58; Riskin v. Great Northern R. Co., 126 Minn. 138, Ann. Cas. 1915 D 823, 147 N. W. 960; Mobile & O. R. Co. v. Brandon, 98 Miss. 461, 42 L. R. A. (N. S.) 106, 53 So. 957.

However, there is some authority to the contrary where a penalty is imposed for failure to pay a debt or claim. Seaboard Air Line Ry. Co. v. Simon, 56 Fla. 545, 20 L. R. A. (N. S.) 126, 16 Ann. Cas. 1234, 47 So. 1001; San Antonio & A. P. R. Co. v. Wilson, 4 Willson Civ. Cas. Ct. App. (Tex.) § 323, 19 S. W. 910.

11 Pittsburgh, C., C. & St. L. R. Co. v. Chappell, 183 Ind. 141, Ann. Cas. 1918 A 627, 106 N. E. 403. This has been held so often as not to require an extended citation of cases.

12 Erie R. Co. v. Williams, 233 U. S. 685, 58 L. Ed. 1155, 51 L. R. A. (N. S.) 1097, aff'g 199 N. Y. 525, 92 N. E. 1084.

Requiring steam surface railways to pay their employees semimonthly, in cash, does not deprive them of the

equal protection of the laws, notwithstanding the requirement does not apply to other corporations, since the classification is a proper one for such purpose. New York Cent. & H. River R. Co. v. Williams, 199 N. Y. 108, 35 L. R. A. (N. S.) 549 with note, 139 Am. St. Rep. 850, 92 N. E. 404.

13 St. Louis, I. M. & S. R. Co. v. Paul, 173 U. S. 404, 43 L. Ed. 746. Contra, Cleveland, C., C. & St. L. R. Co. v. Schuler, 182 Ind. 57, L. R. A. 1915 A 884, 105 N. E. 567.

14 Chicago, T. H. & S. E. R. Co. v. Anderson, 242 U. S. 283, 61 L. Ed. 302, aff'g 182 Ind. 140, Ann. Cas. 1917 A 182, 105 N. E. 49.

A Texas statute imposing upon railroad companies alone the penalty thereby given to contiguous landowners for allowing Johnson grass or Russian thistle to mature and go to seed, does not deny such railroad companies the equal protection of the laws. Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 48 L. Ed. 971.

15 Cleveland, C., C. & St. L. R. Co. v. Schuler, 182 Ind. 57, L. R. A. 1915 A 884, 105 N. E. 567.

railroad regulations as based on a reasonable distinction, which is, at least generally, presumed to exist.

Railroads may be classified for purposes of regulation provided the classification is reasonable. For instance, the exemption of mountain roads less than twenty miles in length, whose principal traffic is hauling of minerals from and supplies to mines, is held in Colorado not an arbitrary classification so far as a statute providing for the appointment of a railroad commission is concerned.16 Likewise, the exception of a dummy railroad operated by steam, or of an electric railroad, from an ordinance limiting the speed of railroads within a city, does not make an arbitrary and unreasonable classification in denial of the equal protection of the laws.17 So the exclusion of railroads less than fifty miles in length from the operation of a state law prohibiting stoves inside of or suspended from passenger cars does not deny to other railroads the equal protection of the laws.18 And a regulation of railroads as to headlights upon locomotives is not invalid because excepting from its operation tram roads, mill roads, and roads engaged principally in lumber or logging transportation in connection with mills.19 A state regulation as to full crews on trains does not deny the equal protection of the laws because it does not apply to railroads less than fifty miles in length,20 and a statute requiring full switching crews on railroads exceeding one hundred miles in length has been upheld.21 So it has been held that a regulation requiring a particular railroad to fence its tracks when other roads in the state are not required to do so, is constitutional, since the legislature is presumed to have determined that the conditions affecting such road are such as to call for regulations different from those applying to other roads.22 But it is held that an order requiring a railroad to maintain a standard depot is discriminatory where other roads passing through the same town to reach the same city are not required to maintain such a depot.23 And regulations as

16 Consumers' League of Colorado v. Colorado & S. R. Co., 53 Colo. 54, 59, Ann. Cas. 1914 A 1158, 125 Pac. 577. 17 Erb v. Morasch, 177 U. S. 584, 44 L. Ed. 897.

18 New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 L. Ed. 853.

19 Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 32 L. R. A. (N. S.) 20, 69 S. E. 725.

20 Chicago, R. I. & P. R. Co. v.

Arkansas, 219 U. S. 453, 55 L. Ed. 290,
aff'g 86 Ark. 412, 111 S. W. 456.

21 St. Louis, I. M. & S. R. Co. v.
Arkansas, 240 U. S. 518, 60 L. Ed. 776,
aff'g 114 Ark. 486, 170 S. W. 580.

22 Missouri & N. A. R. Co. v. State, 92 Ark. 1, 31 L. R. A. (N. S.) 861, 135 Am. St. Rep. 164, 121 S. W. 930.

23 Vicksburg, S. & P. R. Co. v. Railroad Commission of Louisiana, 132 La. 193, Ann. Cas, 1914 C 1168, 61 So. 199.

1

to the right to remove or abandon depots are held violative of the equal protection class, in Missouri, where applicable only to depots erected in consideration of a donation of land to the company.24

§ 4409. Regulations of mining companies. The business of mining is of such a nature as to require special legislation.25 For instance, statutes increasing the common-law liability of mining companies as employers, for liability for injuries to employees, are not invalid as class legislation,26 since mining involves such unusual hazards that mining companies may be classified separately from other lines of business so far as fixing liability for injuries to employees is concerned.27 Furthermore regulations as to liability for injuries to miners may be limited to "producing" mines.28 Moreover, a statute in Maryland relating to the creation of a miners' cooperative relief fund was held not a denial of the equal protection of the laws although it applied only to coal mines and clay mines.29 In Kentucky, statutes requiring payment of mine employees on certain days are upheld as not class or special legislation.30 And in that state regulations as to paying employees, enacted to prevent the abuses from requiring miners to deal with the company stores, are not illegally discriminatory because they apply only to mines employing ten or more, since the "evil can hardly be practiced at small concerns, or where less than ten miners are employed.' "31 But in Maryland a statute requiring mining companies to pay their employees twice a month was held an arbitrary classi

24"The act arbitrarily selects those railroads which have erected depots in compliance with an agreement to erect them in consideration of donations but exempts from its application all other roads despite the fact that the distinction observed is grounded on no reason of a public nature and bears no relation to the reason for the enactment of the legislation relative to the removal of depots, i. e., the need of the public for depot facilities at the place affected." State v. Chicago, B. & Q. R. Co., 246 Mo. 512, 516, 152 S. W. 28.

25 American Coal Co. v. Allegany County Com'rs, 128 Md. 564, 98 Atl. 143.

26 Wilmington Star Min. Co. v. Fulton, 205 U. S. 60, 74, 51 L. Ed. 708,

27 Burgin v. Missouri, K. & T. R. Co., 90 Kan. 194, 133 Pac. 560; Hawkins v. Smith, 242 Mo. 688, 147 S. W. 1042.

28 Hawkins v. Smith, 242 Mo. 688, 147 S. W. 1042.

29 American Coal Co. v. Allegany County Com'rs, 128 Md. 564, 98 Atl. 143.

30 Com. v. Reinecke Coal Min. Co., 117 Ky. 885, 893, 79 S. W. 287, following Com. v. Hillside Coal Co., 22 Ky. L. Rep. 559, 58 S. W. 441.

31 Com. v. Hillside Coal Co., 109 Ky. 47, 58 S. W. 441.

fication so as to be unconstitutional.32 And in Missouri a statute forbidding corporations engaged "in manufacturing or mining" from paying employees in scrip was held invalid as class legislation.33 In 1913, however, the Supreme Court of the United States upheld a Virginia statute forbidding manufacturing and mining companies to issue for the payment of labor any order unless redeemable for its face value in money, as against the objection that it was class legislation, and Justice Holmes said: "The suggestion that others beside mining and manufacturing companies may keep shops and pay their workmen with orders on themselves for merchandise is not enough to overthrow a law that must be presumed to be deemed by the legislature coextensive with the practical need."' 34

A statute requiring coal miners to maintain washhouses for their employees has been held not to deny equal protection of the laws,35 although in Illinois a like statute was held discriminatory because imposing burdens upon mine owners not borne by other employers whose business was such as to render such a regulation no less desirable.36

An eight-hour law applicable only to underground mines and smelters has been upheld.37

Statutes applicable only to mines employing ten or more men are not invalid where the court "cannot say that there was no reason for exempting from its provisions mines so small as to be in the experimental or formative state and affecting but few men, and not requiring regulation in the interest of the public health, safety or welfare." 38 So it is held that a law providing for the inspection of coal mines is not unconstitutional because limited to mines where more than five men are employed at any one time.39

§ 4410. Regulations of insurance companies. Regulations applicable only to insurance companies are not invalid as a denial of the

32 State v. Potomac Valley Coal Co. of Garrett County, 116 Md. 380, 401, 81 Atl. 686.

33 State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350.

34 Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 58 L. Ed. 1288.

35 Booth v. State, 179 Ind. 405, L. R. A. 1915 B 420, Ann. Cas. 1915 D 987, 100 N. E. 563.

36 Starne v. People, 222 Ill. 189, 113 Am. St. Rep. 389, 78 N. E. 61.

37 State v. Livingston Concrete

Bldg. & Mfg. Co., 34 Mont. 570, 583,
9 Ann. Cas. 204, 87 Pac. 980; In re
Boyce, 27 Nev. 299, 65 L. R. A. 47, 1
Ann. Cas. 66, 75 Pac. 1; State v.
Holden, 14 Utah 71, 37 L. R. A. 103,
46 Pac. 756, aff'd 169 U. S. 366, 42
L. Ed. 780. But see In re Eight-Hour
Bill, 21 Colo. 29, 39 Pac. 328.

38 McLean v. Arkansas, 211 U. S. 539, 552, 53 L. Ed. 315, aff'g 81 Ark. 304, 126 Am. St. Rep. 1037, 11 Ann. Cas. 72, 98 S. W. 729.

39 St. Louis Consol. Coal Co. v. Illi